RODRIGUEZ v. CITY OF NEW YORK., 364 Fed.Appx. 702 (2nd Cir. 2010)

Edgardo RODRIGUEZ, Plaintiff-Appellant, v. The CITY OF NEW YORK, Police Commissioner Raymond Kelly, of the New York City Police Department, individual and professional capacities, Captain Albert Pignataro, individual and professional capacities, Sergeant Anthony Pignataro, individual and professional capacities, Captain George O’Brien, individual and professional capacities, Detective Dolores Weiner, individual and professional capacities, Sergeant Gemma Masterson, individual and professional capacities, Lieutenant Andrew Smith, individual and professional capacities, Defendants-Appellees, Admin. Lieutenant Cander, individual and professional capacities, Robert Amato, Suffolk County D.A. Squad, Richard A. Brown, Queens County District Attorney, Thomas J. Spota, Suffolk County District Attorney, County of Suffolk, Suffolk County Police Department of the State of New York, Defendants.

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No. 09-1961-cv.United States Court of Appeals, Second Circuit.February 8, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the United States District Court for the Southern District of New York (Castel, J.), filed April 7, 2009, which, in accordance with the court’s memorandum and order dated April 6, 2009, granted defendants-appellees’ motion for summary judgment and dismissed the complaint. UPON DUE CONSIDERATION, IT IS HEREBYORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

[*] The Honorable Denny Chin, of the United States District Court for the Southern District of New York, sitting by designation.

SUMMARY ORDER
Plaintiff-appellant Edgardo Rodriguez appeals from a judgment of the United States District Court for the Southern District of New York (Castel, J.) granting defendants-appellees’ motion for summary judgment and dismissing the claim. Appellant claims that the district court erred in granting summary judgment for appellees on appellant’s claim for unlawful termination in violation of the Fifth Amendment to the U.S. Constitution and 42 U.S.C. § 1983. We review a district court’s grant of summary judgment de novo, drawing all inferences in favor of the nonmoving party. See SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). We assume the parties’ familiarity with the factual and procedural history of the case, as well as the issues on appeal, which we reference only to the extent necessary to explain our decision to affirm.

The Fifth Amendment to the U.S. Constitution states, in relevant part, that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . .” U.S. Const., Amend. V. In order to bring a successful section 1983 claim based on this privilege against self-incrimination, a plaintiff must establish a violation of the underlying privilege. See Chavez v. Martinez, 538 U.S. 760, 772-73, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion) (holding that sergeant’s failure to rea Miranda warnings to suspect before questioning him did not violate suspect’s constitutional rights, and thus could not be grounds for section 1983 action against sergeant). The privilege is not limited to compelled testimony in criminal cases and may be asserted “in proceedings in which answers might be used to incriminate [witnesses] in a subsequent criminal case.” United States v. Patane, 542 U.S. 630, 638, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). Even when an individual has legitimate reasons to fear that statements may be used against him, however, the Supreme Court has “long permitted the compulsion of incriminating testimony so long as those statements (or evidence derived from those statements) cannot be used against

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the speaker in any criminal case.” Chavez, 538 U.S. at 768, 123 S.Ct. 1994; see also Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994) (Constitution permits testimony to be compelled if neither it nor its fruits are available for such use). If a plaintiff is coerced into waiving his Fifth Amendment
rights and utters self-incriminating or inculpatory statements later used against him in a criminal proceeding, he may have a potentially successful section 1983 claim. See, e.g., Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998).

The district court held that Rodriguez:

set forth neither facts nor legal authority to support a claim that his Fifth Amendment rights were violated. The plaintiff explicitly denies that he refused to answer any questions that [his interrogator] posed. (Pl. 56.1 Resp. ¶¶ 4-5) He does not contend that any statements uttered by him during the interview were used against him at a criminal proceeding. Nowhere in plaintiff’s affidavit, opposition memo or Local Rule 56.1 response does the plaintiff maintain that he exercised his Fifth Amendment privilege against self-incrimination, and the interview transcript does not reflect any assertion of Fifth Amendment protections.

Rodriguez, 2009 WL 911085, at *3.

We agree with the district court that Rodriguez failed to establish a violation of the Fifth Amendment. It follows that Rodriguez’s claim for unlawful termination under section 1983 fails because he did not establish that his Fifth Amendment
rights were violated. See Chavez, 538 U.S. at 772-73, 123 S.Ct. 1994.

We have considered Rodriguez’s remaining claims and find them to be without merit.

CONCLUSION
For the reasons stated above, the judgment of the district court is AFFIRMED.